THIS
MATTER is before the Court on the United States'
Objections to ProposedFindings and Recommended
Disposition of Defendants' Joint Motion to Suppress
Evidence [Doc. 49], Defendant Newman Peery's
Objections to Magistrate Judge's Proposed Findings
andRecommended Disposition of Defendants' Joint
Motion to Suppress Evidence [Doc. 47], and Defendant
Patrick Ehlers' Objection to the Proposed Findings and
Recommended Disposition ofDefendants' Joint
Motion to Suppress Evidence [Doc. 48]. The Court has
considered the written submissions of the parties, the record
in this case, the applicable law, and is otherwise fully
advised. With regard to the Proposed Findings and
Recommended Disposition [Doc. 44] the Magistrate Judge
entered, the Court has conducted a de novo review of those
portions to which objections have been made, 18 U.S.C. §
636(b)(1), and finds itself in agreement with the Magistrate
Judge, as set forth more fully below.

I.
The Court Overrules the United States'
Objections

The
United States objects to the Magistrate Judge's
determination that each Defendant has standing to challenge
the search of the bag that Defendant possessed. Doc. 49 at
2-6. Although Defendants through their actions represented
that they owned the bags they possessed at the time of the
search, the United States argues that possession of a bag
combined with a representation of ownership is insufficient
to confer standing. The Court disagrees. Alternatively, the
United States objects that the search of the bags was not
related to any criminal investigatory purpose. Doc. 49 at
6-9. Again, the Court disagrees. The Court concludes that
Deputy Lankasky violated Defendants' Fourth Amendment
rights when he searched the bags they were carrying and that
this violation requires that evidence found in each bag be
suppressed as to the Defendant carrying that bag.

A.
Each Defendant Has Standing to Challenge the Search of
the Bag That Defendant Possessed

In
determining that each Defendant has standing to challenge the
search of his respective bag, the Magistrate Judge relied on
United States v. Edwards, 632 F.3d 633 (10th Cir.
2001), where the Tenth Circuit determined that a defendant
who did not have standing to challenge the search of a car
nonetheless had standing to challenge the search of closed
bags stored in the trunk of the car because “[the
defendant] clearly manifested a subjective expectation of
privacy in the bags and that his expectation was one that
society has recognized as reasonable.” Doc. 44 at 4
(quoting Edwards, 632 F.3d at 643). The United
States attempts to distinguish Edwards by arguing
that “Defendants grabbed the bags not from a closed and
locked trunk, as in Edwards, 632 F.3d at 642, but
from the truck's main cabin.” Doc. 49 at 5. The
location of the bags when they were searched in the present
case, however, undermines rather than supports the United
States' argument. Defendants claimed ownership in the
respective bags by, at law enforcement's direction,
taking their respective bags out of the truck and then, based
on law enforcement's representations that they were free
to leave, preparing to leave with a third party. As the
Magistrate Judge pointed out, that the bags had once been in
a stolen vehicle does not forever thereafter make them
subject to searches without probable cause - for instance, if
Defendants took their bags to a hotel later that night, law
enforcement would not be able to search the bags in the hotel
lobby without a warrant or probable cause. Doc. 44 at 5.

The
United States does not argue that law enforcement could
conduct a warrantless search of the bags at a hotel later
that night. Doc. 49 at 6. It does argue, however, that the
circumstances under which law enforcement could search the
bags without a warrant turns on the degree to which
Defendants identified the bags as theirs. Specifically, the
United States argues, “the more facts Defendants could
show that established the bags as theirs, the more reasonable
their expectation of privacy would be.” Doc. 49 at 6.
Without citation to any authority, the United States then
asserts that Defendants' act of grabbing their bags out
of the truck (as Deputy Lankasky directed them to do)
“is hardly sufficient” for them to establish
standing in the bags. Doc. 49 at 6. The Court disagrees.

In an
effort to provide an example of what more Defendants could
have done to demonstrate the bags they grabbed were theirs,
the United States suggests if Defendants “demonstrated
they had a change of clothing or other overnight essentials
in the bags, the reasonableness of their expectations of
privacy would be bolstered even further.” Doc. 49 at 6.
There are at least two problems with this suggestion. First,
Defendants did have a change of clothing in their respective
bags - evidence tying Defendants to the bags that law
enforcement felt significant enough to include in its arrest
warrant affidavit. See Doc. 2 at 3. Second, the
suggestion that a person should have to show the contents of
a bag to law enforcement to demonstrate that the bag belongs
to them, in an effort to prevent law enforcement from seeing
what is inside the bag, is absurd. The practical equivalent
of a search would occur if a person was required to show law
enforcement the contents of a bag to demonstrate standing to
challenge the search of the bag.

Contrary
to the United States' argument, the case for standing
each Defendant here has with regard to the bag he possessed
is stronger than the case the defendant who established
standing in Edwards had. The present facts do not
involve bags found in a car; they involve bags in
Defendants' physical possession and over which Defendants
expressed a possessory interest. The Court agrees with the
Magistrate Judge that each Defendant has standing to
challenge the search of the bag he carried, claimed to own,
and evidence indicates did own.

B.
Deputy Lankasky's Search Was Investigative

The
United States next argues that, although Deputy Lankasky was
looking in the bags to determine whether they contained
stolen property, he was not doing so as part of a criminal
investigation. Doc. 49 at 6-9. In his PFRD, the Magistrate
Judge pointed out that under the United States'
rationale, a “law enforcement officer[] could legally
conduct warrantless searches into the bags of any person that
officer thought might have been shoplifting.” Doc. 44
at 6. The United States asserts that the Magistrate
Judge's hypothetical “overlooks the
government's representation that the purpose was to
ensure that no further crime of stolen property
occurred.” Doc. 49 at 9 (internal quotation and
citation omitted) (emphasis in original). “The
PFRD's conclusion”, the United States argues,
“conflates investigating a crime that took place with
preventing a crime from taking place. Ensuring that no
further crime of stolen property occurs is different from
investigating whether Defendants did in fact steal any
property.” Doc. 49 at 9. This distinction, the United
States continues, “places Deputy Lankasky's actions
much more in the realm of community caretaking, and not
investigation.” Doc. 49 at 9. The Court rejects the
United States' argument for two reasons.

First,
even accepting Deputy Lankasky's assertion that he was
looking in the bags for stolen items rather than drugs, the
existence of stolen items would reveal a present rather than
(or perhaps, in addition to) a future crime. If the bags
Defendants carried contained stolen items, the government
easily could prosecute Defendants in connection with their
possession of the stolen items. In such a situation,
Defendants would be unlikely to prevail at trial by arguing
that, even though they were caught red-handed trying to walk
away with stolen items in their bags, they could not be
convicted because they had not yet actually committed any
crime. Further, even if Deputy Lankasky was motivated to look
in the bags to make sure the theft of the bags did not
continue, as opposed to looking in the bags for evidence of a
theft that had already occurred, it is unrealistic to think
that evidence obtained during the search would not be used in
a prosecution initiated in connection with the theft that had
already occurred.

Second,
even if Defendants did not complete the crime of theft or
possession of stolen property, taking substantial steps
toward the commission of these crimes would still constitute
a crime - namely, attempted theft or attempted possession of
stolen property. The Court agrees with the Magistrate Judge
that law enforcement's act of searching the bags for
evidence they were stolen constitutes a criminal
investigative function.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;C.
Suppression of Evidence Found in Each Defendant's
Bag, As It Relates to the Defendant Who Possessed That Bag,
Must Be Suppressed In ...

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